Summary: Miss X complains the Council has failed to meet her brother’s care (Mr Y’s) needs since the onset of the COVID-19 pandemic, leaving him without any support apart from that provided by his family. The Council is not at fault for wanting to reassess Mr Y’s needs before deciding how to meet them in the future. However, the Council failed to put support in place when Mr Y’s father was ill last year. That was a missed opportunity for which the Council needs to apologise.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council has failed to meet her brother’s care needs since the onset of the COVID-19 pandemic, leaving him without any support apart from that provided by his family.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Miss X;
• discussed the complaint with Miss X;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Miss X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

6. Miss X’s brother, Mr Y, lives with his family. He has autism, epilepsy and a learning disability. Before the start of the COVID-19 pandemic, Mr Y attended a Council Day Centre five days a week. His family met his needs for care and support when not at the Day Centre. A care and support plan from April 2019 reflected this. It also identified eligible needs for help with:
• being appropriately clothed;
• maintaining personal hygiene;
• making use of the home safely;
• maintaining a habitable home;
• developing and maintaining family and other relationships;
• accessing and engaging in work, training, education or volunteering;
• making use of necessary facilities or services in the local community.
7. The care and support plan noted his family’s concerns about possible changes to the way the Council provided day services, following a review which included consulting the public, as Mr Y was keen to continue attending.
8. The Council closed its day services when England entered the first COVID-19 lockdown in March 2020. There was no specific requirement for day services to close under The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, which came into force on 26 March. However, under the Regulations everyone had to stay at home unless there was a reasonable excuse not to do so. Attending a day service was not a reasonable excuse.
9. During the lockdown the Day Centre regularly kept in contact with Mr Y and his family by telephone. Mr Y or his family confirmed he was OK. They also reported him wanting to go back to the Day Centre and often asking when it would reopen.
10. On 25 June, anticipating the end of the first lockdown, Mr Y’s family asked the Council when it would reopen day centres. The Council said it had not yet decided.
11. The Health Protection (Coronavirus, Restrictions) (England) (No.2) Regulations 2020 came into force on 4 July 2020. Although there was no specific reference to day services, in effect it was possible to reopen them, subject to the necessary risk assessments (and measures) being in place to reduce the risk of the transmission of COVID-19.
12. The Council wrote to Mr Y on 13 July. It said:
• day centres would not be the same as they were before COVID-19;
• it needed to look at what support Mr Y needed while day centres remained closed;
• when it was safe the Council would continue to provide day services but the locations and activities may change;
• it would offer more work-based training to support people to work or volunteer, if they wanted to;
• it would update Mr Y but could not say when.
13. Miss X wrote to the Council on 15 July raising concerns about possible changes to day services which would prevent her brother from accessing them. She said her parents had had no respite from looking after Mr Y for the past 15 weeks.
14. The Council said it was not suggesting cuts to learning disability services, but wanted to enable some creative thinking over supporting Mr Y and providing respite for his family. It said it was looking at other ways of supporting people as day services had been closed longer than expected. It asked:
• if any activities had helped during lockdown;
• how his family was feeling and whether they had found ways to get respite;
• if Mr Y had any new hobbies or interests he wanted to continue;
• if he had access to video calling to contact his friends from day services.
15. On 20 July the Council wrote to Miss X responding more formally to her email of 15 July. It said:
• it was not cutting services to people with learning disabilities;
• it had closed day centres to comply with the need for social distancing and to protect the vulnerable people it supported;
• the COVID-19 crisis continued, so the support it provided needed to take account of the restrictions which were likely to remain in place for the foreseeable future and it needed to look at providing support which did not rely on specific buildings;
• it wanted to work with Mr Y and his family to support his needs in a way that recognised what was important to him, not just in terms of day care, but wider support needs including future accommodation;
• it did not expect Mr Y to contribute towards the cost of a service he had not been accessing;
• Mr Y’s Social Worker should have been exploring other ways for Mr Y to use his personal budget, such as through outreach to the home or employing a Personal Assistant (PA).
16. Miss X replied later the same day. She said:
• before consulting people about the future of day services, the Council had said anyone who wanted to continue accessing day centres could do so;
• Mr Y wanted to continue going to the Day Centre;
• the Council was not listening to Mr Y or the learning disabled community;
• Mr Y’s Social Worker had not been in contact and no other support or activities had been offered;
• there had never been any discussions about future accommodation for Mr Y;
• the only support they wanted was for Mr Y to go back to the Day Centre, as this benefitted him and his family;
• transport was not an issue as Mr Y’s parents took him to and from the Day Centre;
• the Council had lost sight of the value of day centres for people with learning disabilities.
17. On 2 August Mr Y’s family told the Council he would at least like to access the Day Centre one day a week.
18. On 11 August Mr Y’s family told the Day Centre he had:
• no new hobbies/interests;
• been going out for drives, train trips and to railway stations;
• only received support from his family;
• missed his routine of going to the Day Centre and seeing his friends there.
19. The Council wrote to Miss X on 14 August. It said:
• the guarantee that people could continue attending day services had been made before COVID-19;
• it was working to reopen buildings but this would involve reduced capacity;
• it would have to prioritise access to those with the most complex needs where this was the only safe way to deliver their service;
• it could not, therefore, guarantee everyone a place but was working to set up services for everyone;
• it was aware of the impact COVID-19 had on some of the most vulnerable people and their families;
• its case records showed regular contact from Mr Y’s Social Worker and the Day Centre; this was to check if people were coping and to offer alternative support if not;
• people had welcomed the opportunity for a holistic review to look at future needs, including accommodation “as carers age and become frail” but the Council did not send people to accommodation against their will.
20. Miss X and the Council exchanged further e-mails about her concerns. I summarise the Council’s responses:
• it aimed to have some day services open by early October;
• Mr Y having access would depend on his personal circumstances;
• it encouraged his family to work with his Social Worker and the day services to identify the most appropriate options for his support;
• it no longer had the capacity to ensure everyone who wanted to attend day services could do so (unless all COVID-19 restrictions were lifted, which was unlikely to be the case for some time);
• it had difficult decisions to make on allocating the limited number of places;
• to do this it needed an up-to-date assessment to understand the individual needs and the circumstances of their carers;
• it could not increase capacity by increasing the number of day centres;
• it had only been able to plan for reopening buildings after the end of the lockdown;
• the particular needs of those using day services required it to adapt buildings to minimise the risk of infection;
• it was following national guidance on best practice when identifying the work need to day centres, which had not been available until recently;
• it accepted there had been a lack of contact from the Social Worker;
21. The Council offered to discuss Miss X’s concerns with her, but she preferred to communicate in writing.
22. On 3 September Mr Y’s mother told the Day Centre they felt a bit more positive following the recent exchanges with the Council. She said they were happy with the work the Day Centre had done preparing information for an assessment of Mr Y’s needs and were happy for this to go ahead.
23. On 4 September Mr Y’s Social Worker contacted his mother. His mother said he was doing well but he wanted to return to the Day Centre. She did not want to employ a PA (to support Mr Y in the community) and said contact with his friends over the telephone would not work for him. She said if the Day Centre reopened they would at least want him to return part-time. She did not want to explore other ways of meeting Mr Y’s needs.
24. On 19 October Mr Y’s family asked the Council if someone from the Day Centre could support him to access the community, as his father was unwell and it was likely to take 7-10 days for him to recover.
25. On 20 October the Day Centre agreed to urgently pick up Mr Y’s case and look at support. Mr Y’s father told the Day Centre he was annoyed the Council did not appear to want to support people such as his son. The Council spoke to Mr Y’s mother. It said it was reassessing all those who attended the Day Centre and would deal with Mr Y’s assessment as urgent. Before assessing him, it offered to refer him for support in the community. His mother said this would not work as Mr Y, due to his autism, would not engage with people he did not know. She said they had previously discussed employing a PA but introducing a change now would unsettle him further. She said he needed to see people he knew and, if possible, his friends. The Council said the Day Centre was assessing the risks from reopening and its capacity would be limited, because of social distancing and the rule of six. It said that was why it was looking to provide alternative daytime opportunities in the community. It said someone from the Day Centre may be able to work alongside someone else while Mr Y became familiar with them. They may also be able to meet Mr Y’s friends from the Day Centre.
26. On 21 October the Council confirmed the name of the member of staff from the Day Centre who would work with Mr Y alongside someone else. It suggested assessing Mr Y via a video call. His mother suggested a telephone call or a face‑to‑face assessment. The Council offered to assign an officer who could do a face-to-face assessment. However, Mr Y’s mother said this was not necessary and agreed to a telephone assessment in the first week of November.
27. On 3 November Mr Y’s mother said they had heard nothing about support for Mr Y. She said they would need more time to fill in a form about Mr Y’s needs in preparation for an assessment.
28. Mr Y’s mother wrote to the Council on 30 November. She said an assessment by video call would disadvantage her son as he would not cope and it would not be possible to assess him without meeting him. She said his previous assessment was still accurate. She suggested the need to re-assess him was being driven by the Council’s “transforming care” agenda. She said it had taken advantage of COVID-19 to abandon its commitment to people who wanted to go on using building-based services. She returned the completed form about Mr Y’s needs.
29. On 1 December the Council filled in a COVID-19 Care and Support Plan/Review for Mr Y. It said the review of the contingency plan was due to “proposed or actual change” to day services. It said:
• Mr Y’s family would meet his needs while the Day Centre was closed;
• the Day Centre was completing “safe and well” telephone calls and listed them;
• an Officer had been assigned to assess Mr Y’s needs;
• it had referred Mr Y for support in the community and someone from the Day Centre would work alongside to help with rapport building.
30. The Council wrote to Mr Y’s mother on 11 December. It said:
• it was committed to reopening services as soon as it could;
• it had reopened Mr Y’s Day Centre but could only offer services to a limited number of people;
• it had set up a team to work with people with a learning disability and/or autism;
• it needed to strengthen the way it involved carers in planning and improve its communication with them.
31. On 2 March 2021 the Day Centre wrote to Mr Y and his family. It said it was planning online activities and asked Mr Y if he would like to join any of them.

Is there evidence of fault by the Council which caused injustice?

32. The Council accepts there should have been more contact from Mr Y’s Social Worker. It was not until 4 September that there was a meaningful discussion about alternative support. While this is fault by the Council, it did not cause injustice to Mr Y. The evidence shows he and his family accepted there would be no support from the Council and his family would meet his needs during the first lockdown. Since then, their wish has been for Mr Y to return to the Day Centre, at least on a part time basis.
33. When the family asked for some support when Mr Y’s father was ill, the Council responded constructively. It offered to arrange support with someone from the Day Centre acting alongside while Mr Y became familiar with a new person. But this did not happen. Although the initial offer was not dependent upon reassessing Mr Y, it appears implementing it was nevertheless held up by the discussions over an assessment. That was fault. Although the father recovered quickly, it was a missed opportunity, which is an injustice for which the Council needs to apologise.
34. The family’s wish for Mr Y’s support to return to what it was before the first lockdown is understandable. However, the fact this has not been possible is due to continued COVID-19 restrictions and not because of fault by the Council.
35. The Council is not at fault for wanting to reassess Mr Y’s needs. The last time it reviewed his needs was in April 2019, so a review is long overdue. Along with many other councils, it has decided to reassess people within the context of COVID-19. This is to ensure it understands the impact COVID-19 has had on people such as Mr Y and their families/carers. It also reflects the fact that because of continuing COVID-19 restrictions it needs to look at different ways of meeting needs.

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Agreed action

36. I recommended the Council within four weeks writes to Mr Y and his family apologising for the failure to arrange support when his father was ill in October 2020. The Council has agreed to do this.

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Final decision

37. I have completed my investigation, as the Council has agreed to take action to remedy the injustice caused by its faults.

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Investigator's decision on behalf of the Ombudsman